Imposing penalties: Environmental Infringement Notices and Prosecutions

The Sentencing Act 2002

The High Court in Selwyn Mews v Auckland City Council [2003] CRI2003-404-159 to 161 stated at paragraph 354 that Machinery Movers:

(...) continues to have application but must now be read in the light of the provisions of the Sentencing Act 2002 (...) [which] applies to all sentencing on criminal charges including charges laid under the Building Act 1991 and the Resource Management Act.

Paragraphs 36-42 of the decision provide a useful summary of the principal provisions that may be relevant:

(...) [the Sentencing Act 2002] calls for a systematic approach to sentencing, commencing with a consideration of the purposes of sentencing under s7. Not all those purposes will always be relevant to sentencing in environmental cases. For example, in some cases the harm done may be to the community generally rather than specific members of it. Reparation to particular victims may be relevant in some cases but not others. Rehabilitation will have no relevance to corporate offenders and may not be relevant to individuals who are otherwise of good character.

But many of the purposes of sentencing in s7 will usually be relevant in environmental cases including holding the offender accountable for harm done; promoting a sense of responsibility for the harm; denunciation and deterrence (both personally and generally).

The principles of sentencing in s8 will also be relevant particularly (under s8(a)) the gravity of the offending and the degree of culpability involved. That will include the extent of any damage or adverse effects caused to the environment and the extent to which there was deliberate or reckless conduct. As well, the court will need to consider the issues of seriousness of the offence and penalties under s8(b), (c), and (d); consistency in sentencing levels under s8(e); the effects on victims under s8(f) where applicable; and the particular circumstances of the offender under s8(h) and (i). Where there are issues about mitigating any adverse effects on the environment such as repairing damage or clean-up work, then s8(j) and s10 will become relevant.

Aggravating and mitigating factors under s9 are to be considered. Although a number of these do not have particular relevance in environmental cases, the matters to be considered are not exclusive: s9(4).

In environmental cases, fines will most often be the appropriate penalty. There are a number of provisions of the Sentencing Act relevant to fines. Section 13 provides that a fine must be imposed unless any of the specified exceptions in s13(1)(a), (b), (c), or (d) applies. Other provisions relevant to fines are sections 14 and 39 to 43. Obviously, the capacity of the offender to pay a fine will be very relevant and the court has power to order an offender to make a declaration of financial capacity if necessary. That might have been a useful tool in the present case.

Under the Resource Management Act, the court also has power to impose a sentence of imprisonment or community work: s339(1) and (4). If a sentence of imprisonment is being considered, s16 of the Sentencing Act is important. First, regard must be had to the desirability of keeping offenders in the community so far as practicable in terms of s(1). Secondly, there is a presumption against imprisonment under s16(2). Section 8(g) is also relevant (the least restrictive outcome in the circumstances).

Under the Resource Management Act, enforcement orders under s314 may also be made either instead of or in addition to other penalties: s339(5). As monetary orders may be made under s314(d), reparation under the Sentencing Act may have less relevance in environmental cases but the power exists under sections 12, 14 and 32 to 38. Where a monetary order is not made under s314(d), attention must be given to s12 [of the] Sentencing Act which requires a reparation order to be made where a victim has suffered loss or damage to property unless it would create undue hardship or there are other special circumstances rendering such an order inappropriate.

Paragraphs 40-43 of Waitakere City Council v John Gionis and Daphne Gionis [2002] CRN 1090034293, 1090034295 2090007563 are also relevant.

Sections 7, 8 and 9 of the Sentencing Act 2002 set out the purposes and principles of sentencing as follows:

7. Purposes of sentencing or otherwise dealing with offenders-

  1. The purposes for which a court may sentence or otherwise deal with an offender are-
    1. to hold the offender accountable for harm done to the victim and the community by the offending; or
    2. to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or
    3. to provide for the interests of the victim of the offence; or
    4. to provide reparation for harm done by the offending; or
    5. to denounce the conduct in which the offender was involved; or
    6. to deter the offender or other persons from committing the same or a similar offence; or
    7. to protect the community from the offender; or
    8. to assist in the offender 's rehabilitation and reintegration; or
    9. a combination of 2 or more of the purposes in paragraphs (a) to (h).
  2. To avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to.

8. Principles of sentencing or otherwise dealing with offenders-

In sentencing or otherwise dealing with an offender the court-

  1. must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
  2. must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
  3. must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
  4. must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
  5. must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
  6. must take into account any information provided to the court concerning the effect of the offending on the victim; and
  7. must impose the least restrictive outcome that is appropriate in the circumstances; and
  8. must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
  9. must take into account the offender 's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
  10. must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).

9. Aggravating and mitigating factors-

  1. In sentencing or otherwise dealing with an offender the court must take into account the following aggravating [emphasis added] factors to the extent that they are applicable in the case:
    1. that the offence involved actual or threatened violence or the actual or threatened use of a weapon:
    2. that the offence involved unlawful entry into, or unlawful presence in, a dwelling place:
    3. that the offence was committed while the offender was on bail or still subject to a sentence:
    4. the extent of any loss, damage, or harm resulting from the offence:
    5. particular cruelty in the commission of the offence:
    6. that the offender was abusing a position of trust or authority in relation to the victim:
    7. that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:
    8. that the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability; and
      1. the hostility is because of the common characteristic; and
      2. the offender believed that the victim has that characteristic:

        [(ha) that the offence was committed as part of, or involves, a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002):]
    9. premeditation on the part of the offender and, if so, the level of premeditation involved:
    10. the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.
  2. In sentencing or otherwise dealing with an offender the court must take into account the following mitigating [emphasis added] factors to the extent that they are applicable in the case:
    1. the age of the offender:
    2. whether and when the offender pleaded guilty:
    3. the conduct of the victim:
    4. that there was a limited involvement in the offence on the offender 's part:
    5. that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding:
    6. any remorse shown by the offender, or anything as described in section 10:
    7. any evidence of the offender's previous good character.
  2. Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes).
  3. Nothing in subsection (1) or subsection (2)-
    1. prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or
    2. implies that a factor referred to in those subsections must be given greater weight than any other factor that the court might take into account.